Jose Gonzalez-Cervantes v. Eric Holder, Jr. , 709 F.3d 1265 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE CRISANTO GONZALEZ- No. 10-72781
CERVANTES, AKA Jose Crisanto
Gonzalez, Agency No.
Petitioner, A078-468-051
v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
JOSE CRISANTO GONZALEZ- No. 10-73789
CERVANTES, AKA Jose Crisanto
Gonzalez, Agency No.
Petitioner, A078-468-051
v.
OPINION
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
2 GONZALEZ-CERVANTES V . HOLDER
Argued and Submitted
December 4, 2012—San Francisco, California
Filed March 8, 2013
Before: Dorothy W. Nelson, A. Wallace Tashima, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge D.W. Nelson;
Dissent by Judge Tashima
SUMMARY*
Immigration
The panel denied Jose Gonzalez-Cervantes’ petitions for
review of the Board of Immigration Appeals’ decision
holding that there was no “realistic probability” that
California would apply California Penal Code § 243.4(e),
misdemeanor sexual battery, to conduct that is not morally
turpitudinous, and the BIA’s denial of his motion to
reconsider.
The panel found persuasive the BIA’s decision that the
behavior involved in the offense is per se morally
reprehensible and intrinsically wrong, and held that
Gonzalez-Cervantes did not meet his burden to show that the
California courts have applied CPC § 243.4(e) to conduct
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GONZALEZ-CERVANTES V . HOLDER 3
falling outside the generic federal definition of moral
turpitude.
Dissenting, Judge Tashima would hold that the BIA erred
in finding no realistic probability that California would apply
CPC § 243.4(e) to conduct not morally turpitudinous, and
would reverse the BIA’s decision. Judge Tashima also wrote
that he would grant the petition for review because
Gonzalez-Cervantes’ plea proceedings and the judicially
noticeable documents associated with it did not establish
moral turpitude under the modified categorical approach.
COUNSEL
Kathleen Kelly Kahn (argued), Phoenix, Arizona, for
Petitioner.
Andrew B. Insenga (argued), Office of Immigration
Litigation, Civil Division, Department of Justice,
Washington, D.C., for Respondent.
OPINION
D.W. NELSON, Senior Circuit Judge:
Jose Crisanto Gonzalez-Cervantes petitions for review of
the Board of Immigration Appeals’ (“BIA”) decision holding
that there is no “realistic probability” that California would
apply California Penal Code § 243.4(e) (“§ 243.4(e)”) to
conduct that is not morally turpitudinous and the BIA’s
decision denying his motion to reconsider. We have
4 GONZALEZ-CERVANTES V . HOLDER
jurisdiction pursuant to 28 U.S.C. § 1252(a)(2)(D), and we
deny the petitions.
I. STANDARD OF REVIEW
We review de novo the BIA’s interpretation of the statute
of conviction and where, as here, the BIA does not issue a
published decision in coming to its conclusion, the Court
defers to the BIA’s determination that the statute of
conviction constitutes a “crime of moral turpitude” to the
extent that the BIA’s decision has the “power to persuade.”
Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010)
(internal quotation marks omitted) (citing Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944)); see also Rohit v. Holder,
670 F.3d 1085, 1088 (9th Cir. 2012).
II. ANALYSIS
Under the categorical approach, the Court looks to the
statutory definition of the state offense, and not to the
particular facts underlying the conviction, to determine
whether the offense falls within the generic federal definition
of the crime. See Taylor v. United States, 495 U.S. 575, 600
(1990). To show a state applies a statute to crimes outside the
generic definition of the listed crime, the petitioner must
show that either in her own case or in another case the state
courts have actually applied the statute in the manner for
which she argues. Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007); Ortiz-Magana v. Mukasey, 542 F.3d 653,
660 (9th Cir. 2008). There must be “a realistic probability,
not a theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic definition” of
moral turpitude. Duenas-Alvarez, 549 U.S. at 193.
GONZALEZ-CERVANTES V . HOLDER 5
A crime is morally turpitudinous if it is “vile, base, or
depraved,” and “violates accepted moral standards”; “the
essence of moral turpitude” is an “evil or malicious intent.”
Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012)
(internal quotation marks omitted). In the context of sexual
offenses, whether the crime involves moral turpitude turns on
whether there is (1) actual harm or (2) a protected class of
victim. Nunez, 594 F.3d at 1132; see also Mendoza v.
Holder, 623 F.3d 1299, 1303 n.7 (9th Cir. 2010) (interpreting
Nunez). The term “harm” in this context includes
psychological harm. See Nunez, 594 F.3d at 1136.
Misdemeanor sexual battery under § 243.4(e) has three
elements: (1) the touching of an intimate part of another
person, directly or through the clothing of the perpetrator or
the victim; (2) against the person’s will; and (3) with specific
intent to cause sexual arousal, sexual gratification, or sexual
abuse. Cal. Penal Code § 243.4(e); In re Shannon T., 50 Cal.
Rptr. 3d 564 (Cal. Ct. App. 2006). “Intimate part” is defined
as “the sexual organ, anus, groin, or buttocks of any person,
and the breast of a female.” Cal. Penal Code § 243.4(g)(1).
1. The BIA’s Decision is Persuasive
The BIA cited four California Court of Appeal cases in
reaching its conclusion that there is no “realistic probability”
that California would apply § 243.4(e) to conduct falling
outside the generic federal definition of moral turpitude. In
each, the Court of Appeal applied § 243.4(e) to acts where the
defendant had the specific intent to cause sexual arousal,
sexual gratification, or sexual abuse, and actually inflicted
harm through the unlawful touching of the victim’s intimate
parts. See People v. Chavez, 100 Cal. Rptr. 2d 680 (Cal. Ct.
App. 2000); People v. Dayan, 40 Cal. Rptr. 2d 391 (Cal. Ct.
6 GONZALEZ-CERVANTES V . HOLDER
App. 1995); People v. Rodriguez, No. B182215, 2006 WL
1903041 (Cal. Ct. App. July 12, 2006); People v. Jones, No.
C045990, 2005 WL 2160425 (Cal. Ct. App. Sept. 7, 2005).
For instance, in Chavez, the court held that misdemeanor
sexual battery is a crime of moral turpitude because it is a
specific intent crime, and “[u]nlike simple or even felony
battery, sexual battery does not result from a simple push or
offensive touch.” 100 Cal. Rptr. 2d at 682. Sexual battery,
the court found, involved “the degrading use of another,
against her will, for one’s own sexual arousal.” Id. at 682–83
(quotations and citations omitted). In Jones, the court upheld
the defendant’s conviction for misdemeanor sexual battery
where the victim testified she woke up naked from the waist
down to find the defendant lying naked on top of her.
2005 WL 2160425, at *3. In Dayan, the court upheld the
defendant’s conviction for misdemeanor sexual battery for
intentionally and unlawfully groping women in his dental
office. 40 Cal. Rptr. 2d at 392–95. And in Rodriguez, the
court found the evidence that the defendant touched the
victim’s breast against her will established the crime of
misdemeanor sexual battery. 2006 WL 1903041, at *7–8.
Since the sexual conduct in these cases actually harmed
the victims through the non-consensual touching of their
intimate parts, the acts fall within the generic federal
definition of moral turpitude as applied in the context of sex-
GONZALEZ-CERVANTES V . HOLDER 7
related offenses.1 See Nunez, 594 F.3d at 1132; see also
Mendoza, 623 F.3d at 1303 n.7.
2. Petitioner Fails to Meet His Burden
On appeal, Gonzalez-Cervantes has not met his burden of
showing the California courts have applied § 243.4(e) to
conduct falling outside the generic federal definition of moral
turpitude. See Duenas-Alvarez, 549 U.S. at 193;
Ortiz-Magana, 542 F.3d at 660. Though Gonzalez-Cervantes
cites three cases in arguing California has applied § 243.4(e)
to conduct that did not rise to the level of “depraved, base,
and vile,” in each case the defendant actually inflicted harm
upon the victim with the specific intent to commit sexual
abuse. See In re Shannon T., 50 Cal. Rptr. 3d 564 (Cal. Ct.
App. 2006); In re A.B., No. G043493, 2011 WL 193402 (Cal.
Ct. App. Jan. 20, 2011); In re Carlos C., No. B233338,
2012 WL 925029 (Cal. Ct. App. Mar. 20, 2012).
1
The dissent contends that the BIA’s decision “does not reflect the
current state of California law” because the BIA “relied solely on cases in
which sexual arousal or gratification was a necessary element of a
§ 243.4(e) offense.” Dissent at 14. But the BIA correctly defined
§ 243.4(e) as “a specific intent crime that consists of touching an intimate
part of another against the victim’s will, committed for the purposes of
sexual arousal, sexual gratification, or sexual abuse.” This is precisely the
definition of § 243.4(e) used in all of the cases petitioner cites. See In re
Shannon T., 50 Cal. Rptr. 3d 564, 565 (Cal. Ct. App. 2006); In re A.B.,
No. G043493, 2011 W L 193402, at *2 (Cal. Ct. App. Jan. 20, 2011); In
re Carlos C., No. B233338, 2012 W L 925029, at *2 (Cal. Ct. App. Mar.
20, 2012). As the BIA correctly stated the law as we apply it here, we do
not find that the grounds supporting our opinion represent a “new theory,”
nor that the BIA applied a different understanding of the statute in
concluding that § 243.4(e) is categorically a crime involving moral
turpitude. See Dissent at 14.
8 GONZALEZ-CERVANTES V . HOLDER
In In re Shannon T., for instance, the minor defendant
pinched the breast of the minor victim, causing her emotional
distress and resulting in a significant bruise. 50 Cal. Rptr. 3d
at 565, 567. The court found that the defendant inflicted a
sexual battery under § 243.4(e) with the specific purpose of
sexual abuse because he first told her, “Get off the phone.
You’re my ho,” and when the victim responded, “whatever,”
and walked away, the defendant pursued her, slapped her
face, grabbed her arm, and pinched her breast. Id. at 566–67.
In In re A.B., the court found the minor defendant
committed sexual battery when he poked the center of the
victim’s buttocks, penetrating about an inch. 2011 WL
193402, at *1. The court stressed that the term sexual abuse
included conduct beyond that which caused physical injury or
pain because otherwise the sexual battery statute “would
permit a perpetrator to intentionally humiliate or intimidate
a woman by an unwanted touching of her genitalia or breasts
without violating section 243.4.” Id. at *3. Because the
defendant laughed with his companions as he touched the
victim and used derogatory language, the court found the
evidence demonstrated the defendant’s purpose was sexual
abuse. Id. at *4.
Finally, in In re Carlos C., the court found there was
substantial evidence to support the conclusion that the
defendant acted with the specific purpose to embarrass and
humiliate the victim when, upon seeing two of his friends
slap the victim’s rear end, he “smack[ed]” the victim’s crotch
area, laughed, and ran away. 2012 WL 925029, at *1, 3.
Based on “the act itself together with its surrounding
circumstances,” the defendant had the specific intent to
sexually abuse the victim when he touched her. Id. at *3(quoting Shannon T., 50 Cal. Rptr. 3d at 566).
GONZALEZ-CERVANTES V . HOLDER 9
Though Gonzalez-Cervantes argues these cases show the
conduct at issue did not rise to the level of “depraved, base,
and vile,” in each case the defendant actually inflicted harm
upon the victim by sexually abusing her. Moreover, it is
precisely because the defendants in these cases had the
specific intent to cause the victim psychological harm that the
courts found the elements of § 243.4(e) were satisfied. Of
course, specific intent alone will not render a crime morally
turpitudinous if the acts at issue are “trivial,” see Galeana-
Mendoza v. Gonzales, 465 F.3d 1054, 1061 (9th Cir. 2006)
(citing Mei v. Ashcroft, 393 F.3d 737, 741 (7th Cir. 2004)), or
“mere [] provocation, bad taste, [or] failed humor,” Nunez,
594 F.3d at 1138. However, we do not find that pinching
another’s breasts to the point of bruising, shoving a finger
into another’s rear end, or smacking another’s crotch is easily
characterized as merely provocative, in bad taste, or humor
gone awry.
The dissent argues that the psychological harm the victim
experienced in In re Carlos C.—embarrassment and
humiliation—does not constitute the type of “actual harm”
required under Nunez to elevate § 243.4(e) to a crime
categorically involving moral turpitude.2 Dissent at 17. But
this assumes that the non-consensual touching of an intimate
part itself is not an actual harm. Analyzing harm solely from
a post-actus reus perspective ignores the violation that occurs
2
The dissent also asserts that “Nunez demonstrates that actual harm is
not always sufficient to find that a sexual crime involved moral turpitude,”
and cites two examples of indecent exposure referenced in Nunez. Dissent
at 15–16. But it was precisely because these two examples involved
conduct which the Court described as “relatively harmless” that the Court
found the acts were not “base, vile, and depraved.” Nunez, 594 F.3d at
1138. Thus, we cannot agree that Nunez stands for the proposition the
dissent asserts.
10 GONZALEZ-CERVANTES V . HOLDER
during the sexual act. And only considering the severity of
the psychological harm a victim may experience incorrectly
focuses the inquiry on what a victim may be able to endure
rather than on the morally reprehensible nature of the act
itself. Sexually abusive battery necessarily inflicts actual
harm on the victim.
3. Section 243.4(e) Resembles Other Morally
Turpitudinous Crimes
In determining whether a crime involves moral turpitude,
“it is often helpful to . . . compar[e] it with crimes that have
previously been found to involve moral turpitude.” Rohit,
670 F.3d at 1089 (internal quotations omitted). Misdemeanor
sexual battery is akin to the kind of “base, vile, or depraved”
sex-related offenses this Court has found involve moral
turpitude. See, e.g., Navarro-Lopez v. Gonzales, 503 F.3d
1063, 1074 (9th Cir. 2007) (Reinhardt, J, concurring for the
majority) (rape), overruled on other grounds by United States
v. Aguila-Montes de Oca, 655 F.3d 915, 917 (9th Cir. 2011)
(en banc); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th
Cir. 1994) (per curiam) (incest); Rohit, 670 F.3d at 1089–90
(solicitation of prostitution); Morales v. Gonzales, 478 F.3d
972, 978 (9th Cir. 2007) (communication with a minor for
immoral purposes); United States v. Santacruz, 563 F.3d 894,
897 (9th Cir. 2009) (per curiam) (knowing possession of child
pornography). Because sexual battery necessarily inflicts
harm—the touching of the victim’s intimate part against his
or her will—it is distinguishable from sex-related offenses
this Court has found do not categorically involve moral
turpitude. See, e.g., Nunez, 594 F.3d 1138 (indecent
exposure); Nicanor-Romero v. Mukasey, 523 F.3d 992, 1007
(9th Cir. 2008) (annoying or molesting a child under the age
of 18), overruled on other grounds by Marmolejo-Campos v.
GONZALEZ-CERVANTES V . HOLDER 11
Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc);
Quintero-Salazar v. Keisler, 506 F.3d 688, 694 (9th Cir.
2007) (statutory rape).
The dissent argues that the physical element in sexual
battery is not enough to convert § 243.4(e) into a crime
involving moral turpitude. Dissent at 16. But it is the nature
of the touch, not simply the touch itself, which distinguishes
sexual battery from non-morally turpitudinous sex-related
offenses like indecent exposure and annoying or molesting a
child. In Nicanor-Romero, for instance, the harmless
touching that could satisfy the actus reus element of
§ 647.6(a) (annoying or molesting a child) did not
categorically constitute morally turpitudinous conduct
because (1) the act did not necessarily require harm or injury
and (2) the defendant need not possess a specific intent to
commit any crime, sexual or otherwise. 523 F.3d at 1000–01.
In contrast, under § 243.4(e), the physical touching of the
victim’s intimate part is always non-consensual and always
for the purpose of sexual gratification, arousal, or sexual
abuse. For this reason, the type of physical touch a victim of
sexual battery suffers can never be harmless.
We also find the dissent’s comparison to domestic battery
inapt. In Galeana-Mendoza, this Court held that simple
domestic battery, a general intent crime under California law,
see People v. Lara, 51 Cal. Rptr. 2d 402, 405 (Cal. Ct. App.
1996), was not, categorically, a crime of moral turpitude.
465 F.3d at 1059–62. Critical to the Court’s analysis was that
the crime did not require a specific intent to injure, but
instead required only the general intent to touch another
person. Id. In contrast, to be guilty of violating
§ 243.4(e)(1), an individual must touch, without consent,
another’s intimate parts with the specific intent to insult,
12 GONZALEZ-CERVANTES V . HOLDER
humiliate, or intimidate the victim. In re Shannon T., 50 Cal.
Rptr. 3d at 567; People v. Tills, No. D054245, 2011 WL
5117721 (Cal. Ct. App. Oct. 27, 2011) (“sexual abuse . . .
occurs when sexual mistreatment is intended to cause
psychological pain or injury”) (citing In re Shannon T.,
50 Cal. Rptr. at 566). The specific intent to psychologically
damage another person by touching his or her most private
parts certainly evidences an evil and malicious intent easily
distinguishable from the general intent to touch.
III. CONCLUSION
Section 243.4(e)(1)’s requirement that the defendant
specifically intend to damage his victim psychologically
evidences the malicious intent that is the essence of moral
turpitude. Latter-Singh, 668 F.3d at 1161. “Sexual abuse . . .
is universally condemned by Americans of conscience, not
merely because it is wrong but because its evil tendrils are
detrimental to society.” Efagene v. Holder, 642 F.3d 918,
926 (10th Cir. 2011) (O’Brien, J., concurring in the result).
The BIA’s decision that this kind of behavior is per se
morally reprehensible and intrinsically wrong is persuasive.
See Nunez, 594 F.3d at 1129 (citing Skidmore, 323 U.S. at
140); see also Rohit, 670 F.3d at 1088. Because we agree
that there is no “realistic probability” that California courts
would apply § 243.4(e) to conduct falling outside the generic
federal definition of moral turpitude, we deny the petitions.
See Duenas-Alvarez, 549 U.S. at 193.
PETITIONS DENIED.
GONZALEZ-CERVANTES V . HOLDER 13
TASHIMA, Circuit Judge, dissenting:
I would hold that the BIA erred when it held that there
was no “realistic probability” that California would apply
Penal Code § 243.4(e) to conduct that is not morally
turpitudinous. In fact, California has done just that in cases
the BIA did not consider. I therefore dissent.
In In re Carlos C., 2012 WL 925029 (Cal. Ct. App. 2012),
California applied § 243.4(e) to a middle school student, who
slapped his classmate-victim “with an open hand in her crotch
area.” Id. at *1. The defendant claimed that his friends had
told him to. Id. The victim was “mad, embarrassed, and
‘kind of’ scared.” Id. She chased the defendant, who “ran
away laughing.” Id. The court explained that it was
reasonable to conclude that the defendant “understood that his
action would embarrass and humiliate” the victim. Id. at *3.
In re Carlos C. followed the reasoning of In re Shannon
T., 50 Cal. Rptr. 3d 564 (Ct. App. 2006), in which California
interpreted § 243.4(e) to not require that the defendant be
shown to have acted for the purpose of sexual arousal or
gratification. Id. at 566. See also In re A.B., 2011 WL
193402 (Cal. Ct. App. 2011) (holding that touching “an
intimate part of [another’s] body for the purpose of insulting
or humiliating” that person meets the statutory elements of
§ 243.4(e)).
This line of cases, which was not considered by the BIA,
marks a sharp departure from the cases on which the BIA
relied, all of which involved an element of sexual arousal or
14 GONZALEZ-CERVANTES V . HOLDER
gratification.1 See, e.g., People v. Dayan, 40 Cal. Rptr. 2d
391 (Ct. App. 1995) (dentist kissed and groped women
without consent in his office). The BIA’s decision in this
case is entitled only to Skidmore deference, see Marmolejo-
Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en
banc), and because it does not reflect the current state of
California law, I do not find it persuasive.2 See id. (“Under
Skidmore, the measure of deference afforded to the agency
varies ‘depend[ing] upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking the power to
1
I also note that because the specific intent required under § 243.4(e) no
longer requires sexual arousal or gratification, but may now be satisfied
by an intent to insult or humiliate, the crime of misdemeanor sexual
battery in California may not “categorically be grouped with the crimes of
‘sexual predation’ that elicit moral revulsion” characteristic of other
crimes involving moral turpitude. See Nicanor-Romero v. Mukasey,
523 F.3d 992, 999 (9th Cir. 2008) (holding that the misdemeanor of
annoying or molesting a child under the age of 18 years is not
categorically a crime involving moral turpitude).
2
The BIA relied solely on cases in which sexual arousal or gratification
was a necessary element of a § 243.4(e) offense. But the majority,
recognizing that under In re Carlos C. the mens rea requirement is not so
limited, now provides what it considers to be a more adequate (and
different) basis to uphold the BIA’s decision. The majority thus goes
beyond the ground relied on by the BIA in finding the offense
categorically morally turpitudinous and, in doing so, runs afoul of the rule
that the propriety of an agency’s decision must be judged “solely by the
grounds invoked by the agency.” SEC v. Chenery Corp., 332 U.S. 194,
196 (1947); see also Altamirano v. Gonzales, 427 F.3d 586, 595 (9th Cir.
2005) (refusing to affirm under new theory in support of finding that alien
had violated 8 U.S.C. § 1182(a)(6)(E)(i) where IJ’s decision had been
based on different understanding of that statute).
GONZALEZ-CERVANTES V . HOLDER 15
control.’” (quoting Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944))).
Our case law reveals that the conduct in In re Carlos C.
was not so “base, vile, and depraved” as to reach the level of
moral turpitude. In Nunez v. Holder, 594 F.3d 1124 (9th Cir.
2010), we found that convictions for indecent exposure under
California Penal Code § 314 are not categorically morally
turpitudinous. Like § 243.4(e), § 314 is a specific intent
crime. Its mens rea requirement is not substantially different
from that of § 243.4(e), and may be satisfied by showing that
the defendant exposed “his genitals for purposes of sexual
arousal, gratification, or affront.” In re Smith, 7 Cal.3d 362,
365 (1972). Moreover, our reasoning in Nunez demonstrates
that actual harm is not always sufficient to find that a sexual
crime involved moral turpitude: we provided two examples
of indecent exposure cases from California in which the
defendants had the requisite specific intent to sexually insult
their victims, and where the victims suffered actual harm, for
the proposition that the criminal conduct in those cases did
not rise to the level of baseness and depravity characteristic
of moral turpitude. See 594 F.3d at 1137–38.
The first case, People v. Archer, 119 Cal. Rptr. 2d 783,
786–87 (Ct. App. 2002), involved an extended road rage
incident in which the defendant “exposed his penis and yelled
‘suck [my] dick’” at the victim before pulling out a gun and
pointing it at her. Nunez, 594 F.3d at 1137 (quoting Archer,
119 Cal. Rptr. 2d at 786–87). The victim was so shaken that
she “ran [a] red light and drove directly to a nearby sheriff’s
substation.” Archer, 119 Cal. Rptr. 2d at 785. The California
Court of Appeal held that “the separate requirement that the
intent of the [defendant] be ‘lewd’” was satisfied because
16 GONZALEZ-CERVANTES V . HOLDER
“the defendant exposed himself for purposes of ‘sexual
affront.’” Id. at 785–87 (quoting Smith, 7 Cal.3d at 365).
In the second case, a 12-year-old boy “pulled down his
pants during class and showed his penis to two female
classmates.” Nunez, 594 F.3d at 1137 (citing People v. Lionel
M., 2007 WL 2924052 (Cal. Ct. App. 2007)). One of the
victims explained later that day that she was upset by the
incident, and found it inappropriate. See Lionel M., 2007 WL
2924052, at *2. The California Court of Appeal found that
the defendant had “intended, through the shocking display of
his genitalia, to annoy or offend his female classmates.” Id.In each case, the defendant acted with the specific intent
to sexually insult or offend his victims, and in each case he
caused harm. We explained, however, that the conduct did
not rise to the level of moral turpitude because “the only
difference between their acts and the provocative insults and
tasteless pranks that we have previously held to be non-
morally turpitudinous is the element of sexuality involved.”
Nunez, 594 F.3d at 1138. The facts of In re Carlos C. are no
more base, vile, depraved, or shocking than those of Lionel
M. or Archer.
Section 243.4(e) does contain a physical-contact element
not present in the indecent exposure context, but our decision
in Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir.
2006), shows that the presence of a physical element does not
automatically raise a crime to the level of categorically
involving moral turpitude. In Galeana-Mendoza, we held
that domestic battery is not categorically a crime involving
moral turpitude. Id. at 1061. We explained that the level of
contact necessary to satisfy the “use of force or violence”
element under § 243(e)(1) was too slight to be categorically
GONZALEZ-CERVANTES V . HOLDER 17
morally turpitudinous. Id. at 1059. The amount of force
necessary under § 243.4(e) is no greater; simple “touching”
suffices. Cal. Penal Code § 243.4(e). In Galeana-Mendoza
we also held that the “special, domestic nature” of the
relationship required between the assailant and victim was not
an “inherent element evidencing grave acts of baseness or
depravity.” Id. at 1059–61. If a domestic relationship
between the assailant and his victim does not categorically
raise a battery to the level of moral turpitude, then the
requirement that the touching be to an intimate part is not an
“other inherent element evidencing grave acts of baseness or
depravity” either. See id. at 1061.
None of this is to excuse or minimize the criminal
conduct at issue. As the California Court of Appeal noted in
In re A.B., there are good policy reasons for adopting a broad
interpretation of § 243.4(e). See 2012 WL 193402, at *3.
The broadening of its interpretation to reach the conduct at
issue in In re Carlos C. means, however, that there is at least
a “realistic probability” that California will apply its
misdemeanor sexual battery statute to conduct not involving
moral turpitude (and, in fact, has already done so). See
Nunez, 594 F.3d at 1129 (stating that one case is sufficient to
establish that a crime does not categorically involve moral
turpitude).
The majority concludes by mischaracterizing
§ 243.4(e)(1) as including a “requirement that the defendant
specifically intend to damage his victim psychologically,”
and such an intent “evidences the malicious intent that is the
essence of moral turpitude.” But, as I have emphasized, the
only intent required by § 243.4(e) is an intent to insult or
humiliate, and we have held that such intent is not morally
turpitudinous. See Nunez, 594 F.3d at 1138. The majority, in
18 GONZALEZ-CERVANTES V . HOLDER
its zeal, loses sight of the fact that we are making a
categorical analysis of § 243.4(e).
I would therefore reverse the decision of the BIA.
Further, because Gonzalez-Cervantes’ plea proceedings and
the judicially noticeable documents associated with his plea
do not contain sufficient facts to establish moral turpitude
under the modified categorical approach, see Sanchez-Avalos
v. Holder, 693 F.3d 1011, 1014–15 (9th Cir. 2012), I would
grant his petition for review.
I respectfully dissent.